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April 15, 1998

Ms. Jody Adams
P.O. Box 33
Peconic, NY 11958

The staff of the Committee on Open Government is authorized to issue
advisory opinions. The ensuing staff advisory opinion is based solely upon the
information presented in your correspondence.

Dear Ms. Adams:

I have received your letter of March 25, which deals largely with the
status of library boards of trustees under the Freedom of Information and
Open Meetings Laws.

It is emphasized at the outset that many libraries are characterized as
"public", in that they can be used by the public at large. Nevertheless, some
of those libraries are governmental in nature, while others are not-for-profit
corporations. The latter group frequently receives significant public funding.
Because they are not governmental entities, they would not be subject to the
Freedom of Information Law. Boards of trustees of all such libraries would,
however, be subject to the Open Meetings Law.

In this regard, I offer the following comments.

First, the Freedom of Information Law is applicable to agency records,
and §86(3) of that statute defines the term "agency" to mean:

"any state or municipal department, board,
bureau, division, commission, committee,
public authority, public corporation, council,
office of other governmental entity performing
a governmental or proprietary function for the
state or any one or more municipalities
thereof, except the judiciary or the state

Based on the foregoing, the Freedom of Information Law generally applies to
records maintained by governmental entities.

Second, in conjunction with §253 of the Education Law and the
judicial interpretation concerning that and related provisions, I believe that a
distinction may be made between a public library and an association or free
association library. The former would in my view be subject to the Freedom
of Information Law, while the latter would not. Subdivision (2) of §253
states that:

"The term 'public' library as used in this
chapter shall be construed to mean a library,
other than professional, technical or public
school library, established for free purposes by
official action of a municipality or district or
the legislature, where the whole interests
belong to the public; the term 'association'
library shall be construed to mean a library
established and controlled, in whole or in part,
by a group of private individuals operating as
an association, close corporation or as trustees
under the provisions of a will or deed of trust;
and the term 'free' as applied to a library shall
be construed to mean a library maintained for
the benefit and free use on equal terms of all
the people of the community in which the
library is located."

The leading decision concerning the issue was rendered by the Appellate
Division, Second Department, which includes Valley Cottage within its
jurisdiction. Specifically, in French v. Board of Education, the Court stated

"In view of the definition of a free association
library contained in section 253 of the
Education Law, it is clear that although such a
library performs a valuable public service, it is
nevertheless a private organization, and not a
public corporation. (See 6 Opns St Comp,
1950, p 253.) Nor can it be described as a
'subordinate governmental agency' or a
'political subdivision'. (see 1 Opns St Comp,
1945, p 487.) It is a private corporation,
chartered by the Board of Regents. (See 1961
Opns Atty Gen 105.) As such, it is not within
the purview of section 101 of the General
Municipal Law and we hold that under the
circumstances it was proper to seek unitary
bids for construction of the project as a whole.
Cases and authorities cited by petitioner are
inapposite, as they plainly refer to public,
rather than free association libraries, and
hence, in actuality, amplify the clear distinction
between the two types of library
organizations" [see attached, 72 AD 2d 196,
198-199 (1980); emphasis added by the court].

In my opinion, the language offered by the court clearly provides a basis for
distinguishing between an association or free association library as opposed
to a public library. For purposes of applying the Freedom of Information
Law, I do not believe that an association library, a private non-governmental
entity, would be subject to that statute; contrarily, a public library, which is
established by government and "belong[s] to the public" [Education Law,
§253(2)] would be subject to the Freedom of Information Law.

It is noted that confusion concerning the application of the Freedom
of Information Law to association libraries has arisen in several instances,
perhaps because its companion statute, the Open Meetings Law, is applicable
to meetings of their boards of trustees. The Open Meetings Law, which is
codified as Article 7 of the Public Officers Law, is applicable to public and
association libraries due to direction provided in the Education Law.
Specifically, §260-a of the Education Law states in relevant part that:

"Every meeting, including a special district
meeting, of a board of trustees of a public
library system, cooperative library system,
public library or free association library,
including every committee meeting and
subcommittee meeting of any such board of
trustees in cities having a population of one
million or more, shall be open to the general
public. Such meetings shall be held in
conformity with and in pursuance to the
provisions of article seven of the public
officers law."

Again, since Article 7 of the Public Officers Law is the Open Meetings Law,
meetings of boards of trustees of various libraries, including association
libraries, must be conducted in accordance with that statute.

Since you referred to the absence of notice of meetings, I point out
that §104 of the Open Meetings Law provides that:

"1. Public notice of the time and place of a
meeting scheduled at least one week prior
thereto shall be given to the news media and
shall be conspicuously posted in one or more
designated public locations at least
seventy-two hours before each meeting.

2. Public notice of the time and place of every
other meeting shall be given, to the extent
practicable, to the news media and shall be
conspicuously posted in one or more
designated public locations at a reasonable
time prior thereto.

3. The public notice provided for by this
section shall not be construed to require
publication as a legal notice."

Stated differently, if a meeting is scheduled at least a week in advance, notice
of the time and place must be given to the news media and to the public by
means of posting in one or more designated public locations, not less than
seventy-two hours prior to the meeting. If a meeting is scheduled less than a
week an advance, again, notice of the time and place must be given to the
news media and posted in the same manner as described above, "to the extent
practicable", at a reasonable time prior to the meeting. If, for example, there
is a need to convene quickly, the notice requirements can generally be met by
telephoning the local news media and by posting notice in one or more
designated locations.

I hope that the foregoing serves to clarify your understanding of the
matter and that I have been of assistance.


Robert J. Freeman
Executive Director